As Guatemala replaces attorney general, some see setback to rule of law

The installation of a new attorney general with close ties to the party founded by former dictator Jose Efrain Rios Montt likely signals the end of any effort to pursue a genocide conviction against the retired general.

Former Supreme Court judge Thelma Esperanza Aldana Hernandez took office May 17 as attorney general, generating pessimism among judicial rights analysts who fear that she may cease prosecuting human rights and organized crime cases and focus on lesser street crime.

The selection process leading up to Aldana’s appointment as attorney general was "irregular," said Angelina Godoy, director of the Center for Human Rights at the University of Washington. "Guatemala faces a huge challenge It’s hard not to see recent events as setbacks."

News reports in Guatemala say Aldana may favor amnesty for crimes committed during the 1960-1996 civil war, and her selection is seen by many as a death knell for the genocide prosecution of Rios Montt, who ruled 1982-1983 in a particularly brutal phase of the war.

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Much of Guatemala’s ruling elite would like to leave an examination of the war years behind, a mood reflected in Congress, which recently ratified language stating genocide never occurred in the nation, where some 200,000 people perished.

The previous attorney general, Claudia Paz y Paz, won a genocide conviction against Rios Montt a year ago, leading to his sentencing to an 80-year term for genocide and crimes against humanity. The verdict was swiftly overturned in a controversial court decision.

The Guatemalan constitution and international law both forbid amnesty for crimes such as genocide.

While the selection process for attorney general was intended to be transparent and free of political interference, the reality was quite different. The selection committee, composed of the deans of law schools and other attorneys, put each of 26 candidates through a battery of tests. The score each candidate received was meant to indicate how qualified they were for the job. President Otto Perez Molina then made a selection from a final list of six candidates.

Paz y Paz was not on the final list, despite having the second highest score. Her experience as attorney general was not included in the scoring process and likely would have resulted in her being ranked first, according to outside analysts.

Aldana, long considered the president’s favorite to succeed Paz y Paz, sailed through the process.

A report by the American Bar Association Center for Human Rights, which observed the nominating committee, noted that an unnamed candidate (Aldana) had written or signed more than 200 decisions, including one "in contradiction with relevant rulings of the Constitutional Court." None of Aldana’s more than 200 opinions were examined by the selection committee.

Aldana has zero prosecutorial experience.

While the process was technically ‘transparent’ in that the committee’s proceedings were open to the public, "They missed the point of transparency," said Liliana Gamboa, program officer for the Open Society Foundations. "It doesn’t matter if a real debate and a serious debate is not presented to the public."

Concerns over the possibility of bribery were also raised. Many attorneys on the selection committee are in private practice and had to suspend their work for the duration of the process.

"The way the selection process developed confirmed with every step that Aldana was 'the chosen candidate,’" said Mirte Postema, a senior program officer for Due Process of Law Foundation’s Judicial Independence Program. "The public objections presented against her — four — were dismissed by the Commission."

The irregularities point to hidden political machinations. The removal of Paz y Paz from office seven months early is widely believed to be the result of lobbying and pressure from a coalition of right-wing business and ex-military groups.

Aldana is closely affiliated with the conservative Guatemalan Republican Front (FRG), a political party run by Zury Rios, the daughter of the 87-year-old Rios Montt.

"Her ties to Rios Montt are concerning," Gamboa said.

Paz y Paz’ time as attorney general, from December 2010 to May 2014, led to progress for the rule of law in Guatemala. Under her prosecutorial guidance, the impunity rate in Guatemala dropped more than 20 percent.

Likewise, the number of criminal convictions year over year more than doubled from 2008 to 2013, according to an April report by the Open Society Foundations.

But while Paz y Paz was seen as a strong prosecutor of human rights violations, corruption and organized crime, Aldana has signaled that she intends to turn away from this formula to focus on minor offenses and street crime.

Human rights organizations have found themselves in an uncomfortable position as they begin to deal with Aldana. While many organizations have voiced disapproval of the selection process, few have spoken out for fear that she will either cease prosecuting human rights cases or turn the resources of her office against critics.

"I feel like human rights organizations and community leaders have always had that fear every since they knew the attorney general [Paz y Paz] was going to leave," Gamboa said. "The Public Ministry is a place where it’s very easy for persecution to occur."

Paz y Paz was generally seen as sensitive to the plight of activists in Guatemala, but few believe Aldana will have the same sympathies.